The Tax Cuts and Jobs Act passed Congress last December and there is a lot of talk about how it will impact the tax situation for individuals. Few have considered the impact that the new law will have on divorce and child custody. (See  How Will the New Tax Law Affect Your Divorce? )

Much of the commentary centers around the elimination of the tax deduction for alimony payments. The new law eliminated the deduction for alimony payments from taxable income. Likewise, the recipient of the alimony no longer must claim the payments as income. This new law only applies to divorce finalized after 2018. For alimony orders predating the law, any modification of the alimony order requires a statement as to whether the new law applies for deductibility/income inclusion. While this sounds like a win for alimony recipients,  it actually demotivates a higher-earning spouse from agreeing to make alimony payments as part of a divorce settlement. Alimony payments were a useful tool in resolving divorces where one spouse was high wage earner and the other spouse was a lower wage earner. The paying spouse was motivated to receive the tax deduction where the receiving spouse would not be as heavily tax impacted. Additionally, the new law will effect premarital and postmarital agreements that predate the law because there is no consideration under the new law for agreements reached before the effective date of the law. The law applies based on the date of the divorce judgment.

Another issue arising from the new tax laws in the effect on valuation of a business interest in divorce. In many divorces, the business interest may be the main asset in the property division. However, the new law increase the cash flow of certain kinds of businesses due to lower C Corp tax rates (reduced from adjustable rates up to 35% to a flat rate of 21%).  If all else is equal, the effect of this should raise net after tax income for the difference in the taxes. The exact effect of this on corporate valuation won’t be known until a new business tax return is filed under the new law.

Additionally, for pass through entities, owners of the business may now deduct up to 20% of income defined as “qualified business income” without limit for taxpayers whose taxable income does not exceed $315,000 for married joint filers and phased out up to $415,000. If income is above that level, the deduction is limited to the greater of 50% of W2 wages or the sum of 25% of W2 wages plus 2.5% of the unadjusted basis of all qualified property. For valuation purposes, the TCJA has widened the differences in the tax rates for corporate entities versus pass-through income, which may require adjustments to some of the assumptions applied for valuation purposes.

The new law allows 529 plans to be used to pay for elementary or secondary private school tuition, not just college. There is no change in the tax benefits of a 529 plan, but for 2018, up to $10,000 per beneficiary may be distributed to pay for schooling.  This would raise an issue that needs to be addressed in the divorce settlement.

Personal exemptions have been suspended for tax years 2018 through 2025. During this 8-year period, divorcing parents cannot use personal exemptions for dependent children and do not need to negotiate over which parent gets to use the exemption. If the children are young enough, the exemption may return after the suspension period.

The TCJA significantly changed the child tax credit. It doubled the tax credit to $2,000 for each qualifying dependent child and make $1400 of the credit refundable. But, the credit phases out for married taxpayers earning more than $400,000. and, it expires in 2026. The phase-out threshold under the old law made the child tax credit irrelevant in many divorces, so increasing the phase-out threshold will make this a more significant issue.

The standard deduction has been doubled under the TCJA to $24,000 for married joint filers. The objective for this increase is to reduce taxes and simplify the filing process.Effectively this eliminated itemized deduction for most taxpayers. The limits on itemized deductions have been eliminated, which probably benefits higher wage earners. But the new law reduces the availability of the deduction for state and local taxes for individuals (but not businesses). So, for example, property taxes on a marital residence are deductible up to the cap of $10,000 for married joint filers, making much of property taxes on a high value home not deductible. The new law limits the deductibility of mortgage interest for loans originated after 12/15/17. It also eliminates the deduction for interest on home equity loans. This provision is set to expire after 2025. This increases the cost of financing a home by limiting the tax benefits.